T-513-18 - Doc 173

ID 296
Court File No. T-513-18
FEDERAL COURT
SIMPLIFIED ACTION
BETWEEN:
22-NOV-2021
VOLTAGE HOLDINGS, LLC
Plaintiff
173
- and -
DOE #1 ET AL. (SEE SCHEDULE 1 FOR LIST OF DEFENDANTS)

Defendants
- and -
SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &

PUBLIC INTEREST CLINIC
Intervener
VOLTAGE’S REPLY MEMORANDUM OF FACT AND LAW

(REPLY TO INTERVENER SUBMISSIONS)
AIRD & BERLIS LLP

Barristers and Solicitors
Brookfield Place
181 Bay Street
Suite 1800
Toronto, ON M5J 2T9
Kenneth R. Clark (kclark@airdberlis.com)

Lawrence Veregin (lveregin@airdberlis.com
Tel: 416-863-1500
Fax: 416-863-1515
Solicitors the Respondents

(Appellants by Cross-Appeal)
TO: THE ADMINISTRATOR
Federal Court
AND TO: SAMUELSON GLUSHKO CANADIAN INTERNET POLICY AND

PUBLIC INTEREST CLINIC (CIPPIC)
57 Louis Pasteur Street
Ottawa, ON K1N 6N5
David Fewer (dfewer@uottawa.ca)
Tel: 613-562-5800 x2558

Fax: 613-562-5417
Solicitors for the Intervener

FEDERAL COURT
SIMPLIFIED ACTION
BETWEEN:

Plaintiff
- and -

Defendants
- and -

Intervener
TABLE OF CONTENTS
Part I — Overview ..................................................................................................... 1

Part II — Submissions ............................................................................................... 3
A. CIPPIC’s position that “someone else did it” is pure speculation -
Defendants are alleged to be the direct infringers - no defence
pleaded otherwise - sworn evidence supports allegation ............................... 3
i. CIPPIC asserts more evidence needed - Defendants have declined to
allege or prove a defence - not Voltage’s onus to disprove potential
defences - Voltage has proven its case.......................................................... 3
ii. Discovery of documents is reliable but would require production
computers, phones, tablet, etc. and experts to analyze them ......................... 5
iii. CIPPIC suggests that Voltage should be required to perform intrusive
and expensive investigations to prove its case............................................... 6
iv. CIPPIC suggests Voltage should conduct third party discovery against
ISPs - Voltage has already obtained all permissible information from
the ISPs ......................................................................................................... 7
v. CIPPIC speculates that the subscribers would be able to identify “who
really did it” - CIPPIC provides no particulars on how this should or
could be done ................................................................................................ 7
B. CIPPIC submits the Defendants have not received notice of the
infringements - directly contradicted by the evidentiary record ....................... 8
2
C. CIPPIC argues the Defendants have not been properly identified and
added to the Claim - the opposite is true........................................................ 9
D. CIPPIC relies on facts not proven in evidence to support its case .................. 9
E. Voltage’s claim for infringement by authorization is sound ........................... 10
i. Authorization by indifference – wilful blindness – is available under the
law of Canada .............................................................................................. 10
ii. The Notice and Notice regime targets the gatekeepers – the internet
subscribers – Parliament intended its new tools to stop online
infringement to be used against the internet subscribers.............................. 12
F. Joinder is an appropriate procedural mechanism for creating
manageable cases for the parties and the Court .......................................... 13
G. CIPPIC asserts Voltage’s infringement evidence should be excluded
on privacy grounds—no privacy violation in collecting evidence of
infringement that is publicly advertised on the internet ................................. 14
H. CIPPIC submits only minimum statutory damages award is
appropriate – the infringers are “worst of the worst” – benefit of “get
out of jail free” provisions ............................................................................. 15
LIST OF AUTHORITIES .......................................................................................... 17
FEDERAL COURT
SIMPLIFIED ACTION
BETWEEN:

Plaintiff
- and -

Defendants
- and -

Intervener
VOLTAGE’S REPLY MEMORANDUM OF FACT AND LAW

Part I — Overview
1. CIPPIC’s submissions1 do not properly balance the rights of copyright owners

and infringers, as was Parliament’s intent in introducing the Notice and Notice Regime.
If implemented, CIPPIC’s positions would make impossible any reasonable
enforcement or deterrence of online copyright infringement.
[24] [T]he notice and notice regime’s “primary goal is to deter

infringement”.
Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38

("Rogers v. Voltage") at paras. 22-27, Book of Authorities [BOA], Tab 8.
1These reply submissions are to those of the Intervenor (“CIPPIC”) dated November 3, 2021,
as permitted by the Intervention Order of Justice Furlanetto dated October 22, 2021.
2
2. CIPPIC’s main argument is that Voltage2 has not identified the “true infringer”
— i.e. it makes speculative allegations that the identified internet subscriber “could
have” let others use its internet account. It has no evidence to support its position, or
many of its other positions.
3. This motion is the equivalent of a summary judgment motion — Voltage has to

prove its case. It has put in comprehensive evidence of significant and repeated
infringement of copyright. It has gone to considerable lengths and expense to identify
the owners of the internet accounts in question — the persons who have control over
the use of the internet account. The Defendants could have alleged in a defence that
“they didn’t do it”, and proven this allegation — as would be their onus. Instead, they
are in default and may not so prove.
4. CIPPIC suggests that further discovery could identify the “true infringer”. The
suggested further discovery is not particularized by CIPPIC, nor are the consequences
or cost of such discovery as against the Defendants. Contrary to CIPPIC’s position,
further discovery would not yield any useful results and would not be a proportionate or
efficient use of resources.
5. Even if discovery were available, CIPPIC’s arguments would require Voltage to

obtain the Defendants’ relevant electronic devices (e.g. computers, phones, tablets,
routers, cable modems etc.), or forensic copies of these devices, from all potentially
relevant individuals (roommates, spouses, children, etc.) in order to investigate the
actual acts of infringement. Alternatively, CIPPIC appears to be asking third party ISPs
to provide detailed internet activity logs of their subscribers. The intrusion into the
privacy of these individuals would be very significant, and the costs of analysis of these
devices and records (or their forensic copies) would be very high.
6. None of this is practical or in furtherance of Rule 3 and the dicta of the Supreme
Court of Canada — namely that these proceedings should be expeditious and cost-
effective, while being fair to all.
I agree with the Federal Court of Appeal that the notice and notice regime
should be interpreted so as “to allow copyright owners to protect and
2 i.e., the Plaintiff, Voltage Holdings, LLC

3
vindicate their rights as quickly, easily and efficiently as possible while

ensuring fair treatment of all”.
Rogers v. Voltage, at para. 46, BOA, Tab 8.
Part II — Submissions
A. CIPPIC’s position that “someone else did it” is pure speculation -

Defendants are alleged to be the direct infringers - no defence pleaded
otherwise - sworn evidence supports allegation
7. CIPPIC’s primary submissions are (a) that Voltage has not proven the identity
of the “actual infringer” and (b) Voltage has not proven infringement.
CIPPIC Factum at para. 11.
i. CIPPIC asserts more evidence needed - Defendants have declined

to allege or prove a defence - not Voltage’s onus to disprove potential
defences - Voltage has proven its case
8. Once a plaintiff proves the identity of the person having control over an internet
account, it is the Defendant’s onus to prove that they had given control of the account
to a third party, or allowed use of the account - none of these facts are able to be proved
without the Defendant’s assistance. Being in default, the Defendants have not alleged
or put into evidence any reason to believe that the Defendants were not the person
directly infringing. They have not rebutted the allegation that the subscribers
(Defendants) were the person infringing copyright at the appropriate dates and times,
which Voltage has proven by identifying the owner of the internet account.
See e.g. Trimble Solutions Corporation v. Quantum Dynamics Inc. 2021 FC

63 at para 60, see also paras. 48-61, CIPPIC’s Book of Authorities [CIPPIC’s
BOA], Tab 37.
9. CIPPIC submits that Voltage seeks to “reverse the onus of proof for copyright
infringement”. In a default judgment motion in the Federal Court, while the pleadings
are assumed denied, the burden of proof on Voltage does not increase. Voltage is not
required to disprove every hypothetical defence that could have been pleaded if the
Defendants had defended.

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10. As this Court held:
Setting a higher standard simply requires the judge to do for the defendant
that which it has declined to do for itself.
Ragdoll Productions (UK) Ltd. v. Jane Doe, 2002 FCT 918 at para. 28,
Voltage’s Supplementary Book of Authorities [VSBOA], Tab 3.
11. CIPPIC’s proposed test would encourage defendants to evade the court’s
jurisdiction, as defendants would be in a better position to default than if they had
defended.
12. CIPPIC references several criminal matters in which the courts declined to
uphold an extradition order or convict on the grounds that the state had not shown an
association between an IP address and an individual beyond a reasonable doubt.
These cases are not instructive for a civil copyright claim given the different burden of
proof (reasonable doubt versus balance of probabilities) and the ability of the state to
obtain search warrants and otherwise compel testimony or documents.
CIPPIC Factum at paras. 43–45.
13. The TekSavvy decision of the Federal Court of Appeal held that the Court does
not require rights holders to undertake investigations that are likely to be fruitless once
reasonable investigations have been performed. Voltage has already brought Norwich
orders in this action, and has obtained all possible forensic evidence from those motions
and its investigations. The Defendants must therefore rebut the evidence put forward
by the Plaintiffs, which they are unable to do.
TekSavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100 (“TekSavvy”) at
para 85, CIPPIC’s BOA, Tab 35. See also Voltage’s Written Representations
at paras. 35–36, MR, Tab 4, Page 336.
If, however, the plaintiff has discharged that initial burden, the onus shifts
to the defendant to call evidence to refute that which has been introduced
by the plaintiff.
Halsbury’s Laws of Canada (online), Civil Procedure, “Nature of the

Burden: Trials: Evidence” (XI.5(2)) at HCV-231 “Burden of Proof” (2021
Reissue), VSBOA, Tab 4.
In most cases, there are multiple factual and legal issues. Where there are
several disputed facts or issues in a case, the persuasive (legal) burden in
relation to different issues may be distributed between the parties. […]
5
In civil proceedings, the persuasive (legal) burden of proof operates in a

similar manner. In an action for assault and battery, the plaintiff must prove
that there was an application of force to the victim, that the blow caused the
injury, and the quantum of damages. However, the defendant has the
persuasive burden in relation to a defence of justification and to prove that
he or she used no more force than was necessary.
Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed

(Toronto: LexisNexis Canada, 2018) at §3.13-3.14, VSBOA, Tab 5.
ii. Discovery of documents is reliable but would require production

computers, phones, tablet, etc. and experts to analyze them
14. CIPPIC submits that Voltage should not be able to obtain default judgment
without at first attempting discovery of the Defendants, in part to identify “the true
infringer”. CIPPIC’s only cited case on this point, Motorola, Inc. v. Katz, held the
opposite of what CIPPIC cited it for, and denied leave to discover a defendant in order
to locate other infringers.
CIPPIC Factum at paras. 16 and 20.
In this case, the plaintiffs alluded to the efficiency of including in this

action, by amendment, the names of other infringers ascertained by means
of discovery. This is not in my view a reason to give leave.
Motorola at para. 1, CIPPIC’s BOA, Tab 24.
15. CIPPIC also suggests that Voltage should conduct third-party discovery against
the internet subscribers — but the internet subscribers are the named Defendants and
are not subject to third-party discovery.
16. Even if leave were granted, Voltage is not required to conduct further
investigations that are unlikely to be successful. There is no reason to believe that the
Defendants would attend discovery or cooperate. Voltage has served the Defendants
with the Statement of Claim, sent the Defendants reminder letters and was in active
communications with some of the Defendants or their legal counsel. If the Defendants
did not defend despite repeated notice, then there is no reason to believe they would
cooperate with an examination for discovery.
TekSavvy at para. 85, CIPPIC’s BOA, Tab 35.

6
17. Further, CIPPIC does not identify what information a Defendant may readily
have that would assist in determining the direct infringer’s identity. This is because
there is no readily available information that would assist in determining the direct
infringer’s activity. Unless the Defendant admitted fault in discovery, which while
possible would be unlikely, it is very unlikely that useful information would be obtained
without documentary discovery.
See e.g. TekSavvy where highly sophisticated entities sought to identify

anonymous infringers without success, CIPPIC’s BOA, Tab 35.
18. The most reliable evidence that could be obtained on discovery would be
documentary discovery — i.e. the disclosure of the electronic devices associated with
the infringement and any computer logs associated thereto, if such exist. However, as
set out below, such discovery is very intrusive and disproportionate in an undefended
case.
iii. CIPPIC suggests that Voltage should be required to perform

intrusive and expensive investigations to prove its case
19. Following CIPPIC’s proposed model, Voltage would need to hire private
investigators to determine the residents and people who regularly accessed the
Defendants’ premises and may have had access to their internet. Voltage would also
need to seek forensic copies of all devices (computers, laptops, smartphones, tablets,
Android boxes, etc.) and internet traffic logs that used the Defendants’ internet. Voltage
would then need to engage expert evidence to forensically investigate the hard drives
and logs to identify the source of the infringement.
CIPPIC Factum at paras. 20, 52–54.
20. Taken to its extreme, according to CIPPIC, Voltage would require access to
every single electronic device that the Defendants have in their households and their
internet traffic logs to examine the entire history of the traffic in the Defendants’
households. This evidence would be extraordinarily intrusive.
21. The cost of such investigations would also be disproportionately visited on the
Defendants. Voltage would bear the initial burden of these costs, but they would in turn
be borne by the Defendants in the form of a costs award were Voltage to be successful
7
in its infringement claims. This would dramatically increase the quantum of costs, and
be disproportionate. Proportionality is key.
Rogers v. Voltage, at para. 46, BOA, Tab 8. Federal Courts Rules, Rule 3,
VSBOA, Tab 1.
iv. CIPPIC suggests Voltage should conduct third party discovery

against ISPs - Voltage has already obtained all permissible information
from the ISPs
22. CIPPIC asserts that Voltage should have sought further disclosure motions to
obtain more information to identify the internet user who infringed the copyright. The
only party who may possibly have more information, besides the Defendants, are their
ISPs (although this, too, is speculation).
23. This Court, in the context of a Norwich motion, had previously determined that
the only information that an ISP should be compelled to disclose regarding its
subscribers is the subscribers’ name and postal address. Subscriber email addresses,
for example, were not permitted to be disclosed. The Court made this determination in
part based on CIPPIC’s submissions as intervener in that case. It is inappropriate for
CIPPIC to now argue that Voltage’s should seek the further information that CIPPIC
had previously opposed be disclosed.
Voltage Pictures, LLC v. John Doe, 2016 FC 881 at paras. 16–17, VSBOA,
Tab 6, rev’d on other grounds 2017 FCA 97, rev’d on other grounds 2018
SCC 38.
v. CIPPIC speculates that the subscribers would be able to identify

“who really did it” - CIPPIC provides no particulars on how this should or
could be done
24. CIPPIC alleges that the internet subscriber has “specific information about the
identity of the internet user” who distributed the Work. This is pure speculation. CIPPIC
does not particularize what this “specific information” is, how it would lead to the identity
of the person who distributed the Work or why it is reasonable to believe that this
information is in the possession of the internet subscriber. There is no evidence to
support this speculation.
8
CIPPIC Factum para. 27.
25. Reliable information that the Defendants could potentially have is something
called a “router log”, which could show internet traffic history related to the infringements
and the devices or hard drives of their devices. This is highly technical and would
require experts to decipher. It would also require to third party devices to verify the
contents of the router logs. As discussed above, this is very intrusive and very
expensive. Even if this information were available, it is very unlikely that the normal
internet subscriber would know how to access it, or interpret it. Given the time that has
passed, it may not even exist in any useful form.
BMG Canada Inc. v. John Doe, 2005 FCA 193 at paras. 15a, 19, CIPPIC’s
BOA, Tab 8.
B. CIPPIC submits the Defendants have not received notice of the

infringements - directly contradicted by the evidentiary record
26. CIPPIC submits that there “is no evidence that such notices were received or
understood” by the Defendants. This is contradicted by the record. Voltage has
submitted evidence that, for each Defendant:
(a) Voltage sent two notices to the Defendant, through their ISP using the
“notice and notice” regime;
(b) the Defendant’s ISP confirmed that it forwarded the notices to the
Defendant; and
(c) in some cases the Defendants contacted counsel for Voltage.
CIPPIC Factum at para. 64, Affidavit of Marnie MacDonald, affirmed May 31,
2021 at paras 10–14, Exhibits “D”, “E”, “F”, “G”, “H” [MacDonald Affidavit],
Motion Record [MR], Tab 2, 2D, 2E, 2F, 2G, 2H at Pages 15–16, 32–52.
27. An email that has been sent is presumed to have been received unless contrary
evidence if proven. There is no contrary evidence in this case.
When a visa officer sends an email to an applicant who has provided an

email address, there is a presumption that the email message has been
conveyed to the intended recipient. However when the applicant proves
with credible evidence that the email was not received, the presumption is
displaced and more is required to establish the email request has been
communicated or properly sent.
9
Zare v. Canada (Minister of Citizenship & Immigration), 2010 FC 1024 at

para. 48, VSBOA, Tab 7.
28. To the contrary, there is evidence to suggest that the notices and Statement of
Claim and other documents are understood by the Defendants. Voltage’s notices are
in plain English and French and advise the Defendants to seek legal counsel, including
by providing links to pro bono lawyer referral services. In at least one case (Doe 15),
the Defendant retained counsel to communicate with Voltage, and a handful of other
Defendants contacted counsel for Voltage.
MacDonald Affidavit at Exhibits “D” and “E”, MR, Tab 2D, 2E, Pages
33–45.
C. CIPPIC argues the Defendants have not been properly identified

and added to the Claim - the opposite is true
29. CIPPIC cites Joe Hand Promotions for the proposition that Voltage is required
to “take reasonable steps to identify the unnamed defendants and then move to amend
the style of cause”. This is exactly what Voltage has done. Voltage has identified the
Defendants through a disclosure order against their respective ISPs and added them
to the Statement of Claim (albeit in anonymous form).
CIPPIC Factum at para. 49. Amended Statement of Claim at paras. 5–6,

Appendix 1.
D. CIPPIC relies on facts not proven in evidence to support its case
30. CIPPIC makes several bald allegations in its written representations without
evidentiary foundation, and which is often contradicted by the evidence on the record.
Summarized below are some of these allegations and their rebuttal.
CIPPIC’s Allegation in WR Rebuttal
the evidence does not show that the “The Forensic Software detects
alleged infringements stem from the infringement and records the File Data
“same facts or matter” (para 17) in the same manner described above for
all copyrighted works that Maverickeye
tracks”
(Perino Affidavit at para 42, MR, Tab
3, Page 168)
the Defendants’ circumstances of “The Forensic Software detects

infringement vary (para 34) infringement and records the File Data
10
CIPPIC’s Allegation in WR Rebuttal
in the same manner described above for

all copyrighted works that Maverickeye
tracks”
(Perino Affidavit at para 42, MR, Tab
3, Page 168)
Voltage did not provide any factual There is no evidence that anyone other
evidence that the internet subscriber is than the subscriber had access to the
the person who distributed the Work internet account.
(para 52) “The ISP’s customer may be (and often
is) the individual who is utilizing
BitTorrent software to distribute files,
particularly if the assigned IP address is
only used by a single device”
(Perino Affidavit at para 16, MR, Tab 3,
Page 168)
E. Voltage’s claim for infringement by authorization is sound
31. CIPPIC submits that Voltage cannot establish an authorization claim based on
the evidence filed in this motion and its interpretation of the law. In its written
representations, CIPPIC omits reference to the very recent Federal Court of Appeal
decision in Salna v. Voltage, in which the Federal Court of Appeal rejected CIPPIC’s
arguments that it is attempting to relitigate in this Court.
CIPPIC Factum, at paras. 64–65, Salna v. Voltage Pictures, LLC, 2021 FCA
176 at paras 76–85, VSBOA, Tab 8.
i. Authorization by indifference – wilful blindness – is available

under the law of Canada
32. Infringement by authorization is available in this case, in particular given the

nature of the Notice and Notice regime. The Notice and Notice Regime is targeted at
the internet subscriber. The internet subscriber is the party that receives notices and
may be identified in a lawsuit for copyright infringement. The internet subscriber has
control over their account as owner — i.e. the Defendants are the only persons who
have control or power to take action to cease the asserted infringement, in particular
once they have been given notice of infringement. As the Supreme Court of Canada
noted:
11
[34] The deterrent purpose of the notice and notice regime also affirms the
ISP’s duty to correctly determine to whom the impugned IP address
belonged at the time of the alleged infringement. Deterring online
copyright infringement entails notifying that person, because it is only that
person who is capable of stopping continued online copyright
infringement.
Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38 at para.

34, BOA, Tab 8.
33. Voltage has sent two notices to each Defendant at least a week apart. After
receiving the first notice, the Defendant is on notice that infringement has occurred
using its internet account. Further, Voltage advised that it would not take action against
the Defendant if the infringement ceased within a week of the notice. For all of the
Defendants, the infringement continued, and all of the Defendants received second
notices regarding the further infringement. In many cases, the infringement continued
for days, weeks or months after even the second notice was received.
MacDonald Affidavit, at paras 10–13, Exhibit “D”, MR, Tabs 2, 2D, Page 15–
16, 34.
34. As the Supreme Court of Canada noted, under the Notice and Notice Regime,
where the internet subscriber is not the person who illegally shared copyrighted content,
they are still proper recipients of notices because they are the only person who is
capable of stopping the continued online copyright infringement. Exercising control to
halt infringement is not difficult. The internet subscriber may, for example, simply
change the Wi-Fi password to stop unauthorized use of their internet.
Perino Affidavit at paras 18, 20, MR, Tab 3, Page 163.
35. Once put on notice, subscribers must take action or they are complicit in the
ongoing infringement - they are authorizing infringement. This concept is well-known to
the law of infringement by authorization – and it includes concepts of willful blindness
(e.g. “sufficient degree of indifference”) as well as direct authorization.
I would point out that copyright liability may well attach if the activities of
the Internet Service Provider cease to be content neutral, e.g. if it has
notice that a content provider has posted infringing material on its system
and fails to take remedial action.
Society of Composers, Authors and Music Publishers of Canada v.

Canadian Assn. of Internet Providers, 2004 SCC 45 at para. 124 (“CAIP”),
BOA, Tab 11. See also para. 127.
12
38 […] Authorization is a question of fact that depends on the

circumstances of each particular case and can be inferred from acts that
are less than direct and positive, including a sufficient degree of
indifference: CBS Inc. v. Ames Records & Tapes Ltd., [1981] 2 All E.R. 812
(Ch. D.), at pp. 823-24, as cited in CCH Canadian Ltd. v. Law Society of
Upper Canada, 2004 SCC 13 at para. 38 (“CCH”), BOA, Tab 10.
ii. The Notice and Notice regime targets the gatekeepers – the
internet subscribers – Parliament intended its new tools to stop online
infringement to be used against the internet subscribers
36. Parliament intended the Notice and Notice Regime to be used as a tool of
copyright enforcement — something that would tip the balance towards the owners of
copyright, who historically had not been provided with procedural remedies to counter
the new reality of ubiquitous copyright infringement. This regime targets the
gatekeepers — the internet subscribers.
That first purpose — deterrence — is evident in the preamble to the

Copyright Modernization Act, which states that the “Government of Canada
is committed to enhancing the protection of copyright works or other
subject-matter”. This purpose is echoed in the summary of the Copyright
Modernization Act, which states that the Act is amended to “update the
rights and protections of copyright owners to better address the challenges
and opportunities of the Internet”.
Rogers v. Voltage at para 23, BOA, Tab 8.
37. The deterrent effect of the Notice and Notice Regime is predicated on the
subscriber taking action on receipt of a notice. That person is the only person who is
capable of stopping online copyright infringement. Without the good faith of the
subscriber, there is no deterrence as no-one else can stop the infringement.
[34] Deterring online copyright infringement entails notifying [the

subscriber] because it is only that person who is capable of stopping
continued online copyright infringement.
[35] […] Where, for example, a parent or an employer receives notice, he or

she may know or be able to determine who was using the IP address at the
time of the alleged infringement and could take steps to discourage or halt
continued copyright infringement […]
Rogers v. Voltage at paras. 34-35, emphasis in original, BOA, Tab 8.
38. If the subscriber does not act in good faith, infringement will continue and any
deterrent effect will be lost. The subscriber therefore authorizes infringement in cases
13
where no steps are taken following receipt of notice. This is consistent with the entire
scheme of the Notice and Notice regime and the law on authorization.
CCH at para. 38, BOA, Tab 10.
F. Joinder is an appropriate procedural mechanism for creating

manageable cases for the parties and the Court
39. CIPPIC submits that it is not appropriate for claims against the Defendants to
be heard in a single proceeding, instead proposing that there must be a separate
proceeding against each Defendant. This is not an issued raised by Voltage and is
therefore outside of the scope of the intervention order permitted.
See e.g. CIPPIC Factum at para. 34. Order of Furlanetto J. dated October
22, 2021 at para 3, VSBOA, Tab 9.
40. However, addressing this issue on the merits, we note that CIPPIC’s position
on this motion is directly opposed to their earlier position before this Court in a related
Voltage proceeding where CIPPIC submitted that joinder is, in fact, the preferred
method for hearing these types of copyright infringement claims. CIPPIC should not be
entitled to resile from its prior position.
In CIPPIC’s view, joinder is preferable from the perspective of the

respondents’ interest in access to justice because joinder of actions
preserves known procedural safeguards.
Voltage Pictures, LLC Canada v. Salna, 2019 FC 1412 at para. 143, VSBOA,
Tab 10, rev’d 2021 FCA 176.
41. CIPPIC’s position is also contrary to the findings of the Federal Court of Appeal,
who has endorsed collective enforcement proceedings as an efficient way for handling
copyright infringement claims.
Furthermore, to the extent that the internet creates many opportunities for
infringement, the enforcement of mandatory tariffs against many individual
infringers is no different than prosecuting infringement actions against
many individual infringers. The statutory remedy is collective enforcement,
not the substitution of one prohibited act for another.
York University v. Canadian Copyright Licensing Agency (Access

Copyright), 2020 FCA 77 at para. 203, VSBOA, Tab 11, aff’d (not on this
point) at 2021 SCC 32.
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42. This Court has granted similar motions for default judgment in copyright cases
where there have been multiple unrelated defendants who infringed copyright in a
similar manner. The Rules provide flexibility to allow for fair and efficient means of
resolving similar issues or grouping similar fact scenarios together. In this case, all of
the Defendants have distributed copies of the same work in the same way, and none
of the Defendants have defended to provide any facts unique to that Defendant.
Salna v. Voltage Pictures, LLC, 2021 FCA 176 at paras. 102–104, VSBOA,
Tab 8; Bell Canada v. L3D Distributing Inc. (INL3D), 2021 FC 832 at paras.
28–31, 114, VSBOA, Tab 12.
43. CIPPIC fails to identify any prejudice that the Defendants may suffer by all
having the thirty claims determined in a single hearing. The alternative is for there to
be thirty separate hearings to decide essentially the same issues for the same set of
facts. This would needlessly make the proceedings more complicated and less
efficient. If there are contested proceedings where the Defendants do have facts
unique to a Defendant, the Court may create procedural mechanisms (including
damages references) to remedy such issues. The low quantum of damages at stake
for each Defendant (generally $5000 or less in damages) also favours joinder.
G. CIPPIC asserts Voltage’s infringement evidence should be

excluded on privacy grounds—no privacy violation in collecting
evidence of infringement that is publicly advertised on the internet
44. CIPPIC asks for the Court to exclude Voltage’s evidence of infringement on the
grounds that it is “biographical and personal”. CIPPIC’s position is at odds with its
earlier position that Voltage should be collecting more evidence of the infringement,
and is also unsupported in law. CIPPIC fails to identify what information is “biographical
and personal” or provide an authority to justify its exclusion. This information is
necessary to calculate appropriate statutory damages, and is permitted by an exception
under PIPEDA.
CIPPIC Factum at para. 75. Personal Information Protection and Electronic

Documents Act, SC 2000, c. 5, s. 7(1)(b), VSBOA, Tab 2.
15
H. CIPPIC submits only minimum statutory damages award is

appropriate – the infringers are “worst of the worst” – benefit of “get out
of jail free” provisions
45. CIPPIC submits that all infringements should be treated as non-commercial and
at the minimum amount of the range. Further, CIPPIC argues that the statutory
damages award should consider the actual losses. Voltage has agreed that all but one
infringement should be treated as non-commercial (the exception being Doe #103,
which is a commercial hotel). Voltage has provided an estimate of its actual losses
which correlate to (or are more than) the requested statutory damages. CIPPIC has
not seriously contested the damages calculations, and in particular the “actual
damages” calculations.
CIPPIC Factum at paras. 68–69, MacDonald Affidavit at para 32, Exhibit “C”,
MR, Tabs 2, 2C, Pages 20–22, 30.
46. Voltage is not pursuing claims against any minimum level infringers. The
Defendants are in the top 10% of “worst” infringers. Some of the Defendants distributed
the Work for months, with hundred of recorded instances of infringement. They have
received and ignored two notices and the service of the statement of claim as well as
reminder notices. Even with a judgment, Voltage will have no assurances that the
Defendants have ceased or will cease the infringement. The judgment must be
significant enough to deter ignoring notices and the Court’s procedure.
Perino Affidavit at para 51, Exhibit “C”, MR, Tabs 3, 3C, Pages 170, 245.
16
47. CIPPIC’s comparison to the cost of a single movie is incorrect. Voltage’s claim
is not for a single downloaded personal copy of the Work it is for the distribution of the
Work. Its actual damages are estimated in the original motion record.
Perino Affidavit at paras 23–24, 47–52, MR, Tab 3, Pages 164, 169–170.
MacDonald Affidavit at para 32, Ex. “C”, MR, Tabs 2, 2C, Pages 20–22, 30.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 15th day of November, 2021.
AIRD & BERLIS LLP

Barristers and Solicitors
Brookfield Place
181 Bay Street
Suite 1800
Toronto, ON M5J 2T9

Lawrence Veregin (lveregin@airdberlis.com)
Tel: 416-863-1500
Fax: 416-863-1515
Solicitors for the Plaintiff
LIST OF AUTHORITIES
Rules / Statutes
1. Federal Courts Rules, SOR/98-106, Rule 3
2. Personal Information Protection and Electronic Documents Act, SC 2000, c. 5, s. 7(1)(b)
Authorities
3. Ragdoll Productions (UK) Ltd. v. Jane Doe, 2002 FCT 918
4. Halsbury’s Laws of Canada (online), Civil Procedure, “Nature of the Burden: Trials:
Evidence” (XI.5(2)) (2021 Reissue)
5. Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed (Toronto:
LexisNexis Canada, 2018) at §3.13-3.14
6. Voltage Pictures, LLC v. John Doe, 2016 FC 881
7. Zare v. Canada (Minister of Citizenship & Immigration), 2010 FC 1024
8. Salna v. Voltage Pictures, LLC, 2021 FCA 176
9. Order of Furlanetto J. dated October 22, 2021
10. Voltage Pictures, LLC Canada v. Salna, 2019 FC 1412
11. York University v. Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA
77
12. Bell Canada v. L3D Distributing Inc. (INL3D), 2021 FC 832
13. Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38
14. TekSavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100
15. Motorola, Inc. v. Katz, 1998 CanLII 8198 (FC)
16. BMG Canada Inc. v. John Doe, 2005 FCA 193
17. Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of
Internet Providers, 2004 SCC 45
18. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13
APPENDIX 1
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
VOLTAGE HOLDINGS. LLC
Plaintiff
- and -
DOE #1 et. al.

(see Schedule 1 for list of Defendants)
Defendants
AMENDED STATEMENT OF CLAIM

[Amended pursuant to the Order of Case Management Judge Molgat dated October 24, 2019]
TO THE DEFENDANTS
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The
claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are
required to prepare a statement of defence in Form 171B prescribed by the Federal Courts Rules
serve it on the plaintiffs solicitor or, where the plaintiff does not have a solicitor, serve it on the
plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this
statement of claim is served on you, if you are served within Canada.
If you are served in the United States of America, the period for serving and filing your
statement of defence is forty days. If you are served outside Canada and the United States of
America, the period for serving and filing your statement of defence is sixty days.
Copies of the Federal Court Rules information concerning the local offices of the Court
and other necessary information may be obtained on request to the Administrator of this Court at
Ottawa (telephone 613-992-4238) or at any local office.
IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in
your absence and without further notice to you.
Date: "MAR 16 2018” Issued by:_________ ’Taina Wong”

(Registry Officer)
Address of Local Office 180 Queen Street West

Suite 200
Toronto, ON M5V 3L6
TO: THE ADMINISTRATOR
Federal Court
AND TO: Various Defendant Does as per Schedule 1 hereto

3
THIS ACTION IS BEING BROUGHT AGAINST YOU UNDER THE

SIMPLIFIED PROCEDURE PURSUANT TO RULE 292 OF THE FEDERAL COURTS RULES
CLAIM
1. The Plaintiff claims:
(a) a declaration that each Defendant has infringed the Plaintiff’s copyright in the
cinematographic work, Revolt (the “Work”) contrary to ss. 27(1) and 27(2) of the
Copyright Act as a result of the Unlawful Acts (as that term is defined below);
(b) a declaration that the Plaintiff owns the copyright in the Work;
(c) a declaration that copyright subsists in the Work;
(d) an interim, interlocutory and permanent injunction restraining each Defendant, and
any and all persons acting on behalf of or in conjunction with such Defendant, and
any and all persons with notice of such injunction from infringing the copyright in
the Work, including by way of the Unlawful Acts;
(e) an Order granting a “wide injunction” pursuant to s. 39.1 of the Copyright Act,
further enjoining each Defendant from infringing the copyright in any other work or
subject matter in respect of which the Plaintiff is the owners of the copyright;
(f) damages for infringement of the Work in accordance with s. 35 of the Copyright
Act and, in addition to those damages, such part of the profits that the Defendant
has made from the infringement that were not taken into account in calculating the
damages as this Honourable Court considers just;
(g) in the alternative to the damages for copyright infringement set out in 1(f), above,
at the Plaintiffs election at any time before final judgment is rendered, statutory
damages pursuant to s. 38.1(a) or 38.1(b) of the Copyright Act, as the case may
be;
(h) pre-judgment and post-judgment interest in accordance with sections 36 and 37 of

the Federal Court Act, R.S.C. 1985, c. F-7;
(i) costs of this action on a solicitor and client scale together with applicable taxes, or
in the alternative, any other scale that is just;
4
(j) relief in accordance with Rule 298(2) to permit motions to:
(i) identify the anonymous Defendants;
(ii) amend the Statement of Claim to add further Defendants or remove

Defendants, as the case may be; and
(iii) case manage this action; and
(k) such further relief as is requested by the Plaintiff and that this Honourable Court
finds just.
THE PARTIES
The Plaintiff and the Copyright in the Work
2. The Plaintiff, Voltage Holdings, LLC POW Nevada, LLC (“Plaintiff) is a movie production
company that produces cinematographic works.
3. The Work is a 2017 science-fiction film.
4. By Assignment dated May 1, 2019 from POW Nevada, LLC, the former plaintiff in this
action, to Voltage Holdings, LLC (“Plaintiff”), the Plaintiff is the owner of the copyright in
the Work.
Each Defendant’s Wrongful Conduct
5. Each “Doe" Defendant (a “Doe Defendant”) is a person whose name and identity is
currently unknown to the Plaintiff. Each Doe Defendant has unlawfully, and without the
Plaintiffs authorization or consent, utilized the BitTorrent peer-to-peer network to
download and/or unlawfully offer to upload the Work thus infringing the Plaintiffs copyright
in the Work. Each other Defendant, as the case may be, was a “Doe” Defendant but has
subsequently been identified.
6. Each Defendant has been identified by the internet protocol ("IP") address used by the
Defendant when performing the Unlawful Acts, as set out in Schedule 1 to this Claim.
7. Specifically, but without limitation, the Defendant engaged in the Unlawful Acts at least on
the dates and times set out in Schedule 1 to this Claim.
5
8. In accordance with the provisions of s. 41.25 and s. 41.26 of the Copyright Act each
Defendant was notified of his or her Unlawful Acts by Notice a first notice (the “First
Notice”). The First Notice informed each Defendant that they had been detected by
forensic software as offering for upload the Work, and indicated that if the Work was taken
down that there would be no action taken as against such Defendant. Each Defendant
failed to respond, or refused to respond, to the First Notice and continued his or her
Unlawful Acts.
9. As a result of each Defendant’s failure to respond to the First Notice and his or her
continuation of the Unlawful Acts, a second notice (the “Second Notice”) was sent to the
Defendant by counsel for the Plaintiff after the forensic software detected that the same
IP address was offering for upload the same Work. This Second Notice indicated that the
work had not been removed and that legal action may be taken as against such Defendant.
The Defendant failed or refused to respond to the Second Notice and has continued his
or her Unlawful Acts.
10. In each case, the forensic software has downloaded a significant portion of the Work from
each Defendant to confirm that the Work was in fact being offered for upload, and each
Defendant has uploaded such portion of the Work without authorization from the Plaintiff.
THE UNLAWFUL OFFER TO UPLOAD THE WORK
11. Through custom-designed software designed to track copyright infringements, and the
online identities of those who commit such infringements (by way of IP address and time
of infringement), the Plaintiff has identified many thousand instances of its films (including
the Work) being illegally offered for “download” from individuals using the internet.
12. Such users offering the Work for “download” are said to be “uploading” such Work.
“Uploading” and “downloading” are terms of art in respect of computer file transfers on the
internet. A user “uploads” a computer file to someone who requests the file from such
user. A user “downloads” a computer file from someone who “uploads” that file to them.
In other words, an “uploader” offers a Work for download and when requested, sends that
file (or a portion of that file) to the downloader. A computer file can, for example, be a
copy of a Work.
6
13. Offering a Work for download via the internet, including by way of the Unlawful Acts or
similar acts, is, inter alia, a communication of such Work to the public by way of
telecommunication, as set out in s. 3(f) of the Copyright Act, and an unlawful offer to
upload is therefore a violation of the rights set out in s. 3 of the Copyright Act that are
reserved to the owner of copyright in the Work alone. The Plaintiff further pleads and
relies on s. 2.4(1.1) of the Copyright Act.
14. The offer to upload and the uploading of the Work by the Defendant is a clear infringement
of the Plaintiff’s copyright for which there is no available defence, including any defence
related to fair dealing, whether pursuant to the Copyright Act or otherwise.
THE BitTORRENT PROTOCOL FOR “SHARING” COMPUTER FILES
15. Each Defendant has infringed the Plaintiffs copyright in the Work through the use of
various types of computer software using the “BitTorrent” protocol. BitTorrent is a popular
peer-to-peer (“P2P”) “file sharing” protocol which enables the distribution of computer files
over the internet between individual internet users.
16. A user who wishes to upload or download a computer file, which could include a motion
picture, music, computer software or other forms of computer files, can run a program that
implements the BitTorrent protocol. There are many forms of programs that run the
BitTorrent protocol, each of which works in a similar fashion.
17. A user who wishes to "share” a computer file (e.g. the Work) with other users of the
BitTorrent software places that computer file in a computer location (a “folder”) that is
known to the specific software that is running the BitTorrent protocol. The BitTorrent
software then offers that file for download to anyone who is using compatible BitTorrent
software and who requests that particular file.
18. A user then starts downloading a file by requesting it from the uploader who has offered
that file for download. When a file is “uploaded” by the uploader to the requesting user
using this protocol, the uploader is “seeding” that file. Other users of the BitTorrent
software (called “peers”) are able to connect directly to the user(s) seeding the file and
can begin downloading it. In an automated collaborative process, each “peer” or “seed”
who has a copy of the same specific file in question (or a portion thereof) can then share
that file (or portions of it) with others. In normal operation, many users will provide portions
7
of a file to the person requesting the file. It would be unusual for a single uploader to
transmit the entire file to the requesting user.
19. Typically, BitTorrent software breaks a file into numerous small portions (“data packets”),
each of which is identifiable by a unique "hash” number created using a mathematical
algorithm. Once the file is broken down into these smaller packets, peers can download
different segments of the same file from different users by reference to this hash. The file
itself has its own hash identifier that uniquely identifies it across the BitTorrent network.
20. As peers download the various packets which, when taken together constitute the entire
file, those same individuals then typically become seeders for other users who wish to
download the same material.
21. Eventually, the entire computer file is obtained by downloading from one or many persons
all of the required packets, and the BitTorrent software assembles the completed
computer file on the downloader's computer. Any particular uploader may have only
provided a small portion of the entire file that was downloaded, or it may have provided a
large portion of the entire file, or the entire file. The downloader (peer) then eventually
becomes a “seeder” and can thereafter distribute the computer file to other users
connected to the BitTorrent network.
22. A user does not typically copy an entire file from one user, but from multiple “peers” that
have previously downloaded the file and have it available through their BitTorrent
software.
23. In normal operation, every user who is copying or who has copied a file is simultaneously
distributing portions of that same file to every other downloader of that file that is connected
to the BitTorrent network. This distributes the work of copying the file over many
computers and internet connections and tends to minimize data transfers from any one
individual.
24. The BitTorrent network is an international network that takes place over the internet. It is
not typically limited to any one jurisdiction or nationality. In this Action, each Defendant
has been identified by an IP address that is believed to be located in Canada.
25. For the purposes of this proceeding, the following shall be referred to as the Unlawful Acts
of each Defendant:
8
(a) making the Work available for download by means of the BitTorrent network by
offering the file for uploading, in the manner as set out above;
(b) advertising by way of the BitTorrent protocol that the Work was available for
download; and
(c) failing to take reasonable, or any, steps to ensure that a person downloading
the Work was authorized to do so by law.
IP ADDRESSES
26. An IP address is a unique, numerical label which is assigned to every device, such as a
computer, router or switch, connected to the internet. An IP address allows the location
of these devices to be determined by other devices using the internet, and for data to be
sent to such device, and differentiated from other devices. One of the core functions of an
IP address is to allow data sent over the internet to be received by the intended recipient
device.
27. An internet service provider (or ISP) allocates an IP address to devices connected to its
network. ISP’s are assigned blocks or ranges of IP addresses. The range assigned to
any ISP can be found in publicly available databases on the internet. It is therefore
possible to determine which ISP has allocated a particular IP address at a particular date
and time.
28. ISP’s track the IP addresses assigned to their customers at any given time and retain
“user logs” of that information. Only the ISP can correlate an IP address to the identity of
its customer.
29. The “customer” may be the infringer of copyright, in particular if the assigned IP address
is only used by a single device.
30. In many cases, the ISP’s customer may be the owner of a “router”, a device that shares
the internet connection (and the specifically allocated IP address) with other devices
connected to it. In that case, the customer should have, and ought to have, the knowledge
of who was using the customer’s internet account at the specifically identified date and
time.
9
31. Each Defendant was allocated and/or used a specific IP address at a specific date and
time when engaging in the Unlawful Acts as set out in Schedule 1 to this Claim. The
identity of each anonymous Doe Defendant may be determined by tracing the customer
of the ISP and perhaps by further examination of the customer.
THE PLAINTIFF OWNS THE COPYRIGHT
32. The Plaintiff pleads that the Work is an original cinematographic, artistic and dramatic
work in which copyright subsists, in accordance with ss. 2 and 5 of the Copyright Act. The
Plaintiff further pleads that the Work is original and originates from its author’s and maker’s
skill and judgment.
33. The Plaintiff pleads and relies upon the statutory presumptions of the Copyright Act,
including s. 34.1 and in particular ss. 34.1(1)(a), 34.1(1)(b) and 34.1(2)(c).
34. The “credits” of the Work list the Plaintiff as owning the copyright in the Work.
THE INFRINGEMENT
35. The Plaintiff employs forensic software (the “Forensic Software”) to scan BitTorrent
networks for the presence of copyrighted motion pictures, including the Work.
36. The Forensic Software searches BitTorrent networks for computer files corresponding to
the Work and it has identified the IP address of each person who was offering any of these
files for transfer or distribution. This information is available to anyone that is connected
to the BitTorrent network.
37. The Plaintiff, or agents thereof, have downloaded copies of the Work available for
download on the BitTorrent networks to verify that what appears to be the Work are, in
fact, the Work.
38. The Plaintiff has further scanned the internet for Canadian uploaders of the Work. In
respect of each person located offering to upload the Work, or in other words, offering the
Work for download, the Plaintiff recorded the following identifying information:
(a) the IP address assigned to the uploader by his or her ISP at the time of the scan;
(b) the date and time at which the Work was available for distribution by the uploader
in the form of a computer file; and
(c) data about the file (i.e. the file’s metadata) which includes the name of the
computer file containing the Work and the size of the file, as well as the BitTorrent
“hash” identifying the particular version of the Work.
Using this method, the Plaintiff identified each Defendant as being a person unlawfully
offering to upload the Work by engaging in the Unlawful Acts.
Section 3 of the Copyright Act sets out the rights reserved to the owner of copyright and
their licensees in respect of an original work.
Pursuant to s. 3(1 )(f) of the Copyright Act, “copyright” in relation to a work means the sole
right to produce or reproduce the work or any substantial part thereof in any material form
whatever, and includes the sole right to, in the case of any literary, dramatic, musical or
artistic work, to communicate the work to the public by telecommunication.
Pursuant to s. 27(1) of the Copyright Act, it is an infringement of copyright for any person
to do, without the consent of the owner of the copyright, anything that by the Copyright Act
only the owner of copyright has the right to do.
Pursuant to ss. 27(2)(b), (c), (d) and (e) of the Copyright Act, it is an infringement of
copyright for any person to engage in certain prohibited acts of “secondary infringement”
in respect of a copy of a work that the person knows or should have known infringes
copyright or would infringe copyright if it had been made in Canada by the person who
made it by:
(a) distributing the work to such an extent as to affect prejudicially the owner of the
copyright;
(b) by way of trade distribute, expose or offer for sale or rental, or exhibit in public a
work; or
(c) possess a work for the purposes of (a) or (b), above.
Each Defendant is offering and has offered to upload the Work using the BitTorrent
protocol. The Plaintiff pleads that such offering to upload is, inter alia, a communication to
11
the public via telecommunication within the meaning of the Copyright Act, and as a result
violates s. 27(1). Further the Unlawful Acts are an unauthorized reproduction of the Work,
and therefore, each Defendant has unlawfully reproduced the Work and infringed the
copyright in the Work in accordance with s. 27(1) of the Copyright Act.
45. The act of offering to upload the Work to any person who seeks to download such Work
further:
(a) distributes such Work to such an extent as to affect prejudicially the Plaintiff;
(b) by way of trade distributes and exposes such Work; and
(c) possesses such Work for the purposes of doing the acts set out in paragraphs (a)
and (b), above.
46. The Defendant knew or should have known that the making of a copy of such Work would
infringe the copyright in such Work if it had been made in Canada by the person who made
it. As such, the Defendant has infringed copyright contrary to ss. 27(2)(b), (c), (d) and (e)
of the Copyright Act.
ALTERNATIVE GROUNDS IF DEFENDANT IS NOT DIRECT INFRINGER
47. Alternatively, some of the Defendants may not be the direct infringer, but through
negligence or wilful blindness has authorized others to do the foregoing acts, including the
Unlawful Acts. In this regard, the Plaintiff pleads that each Defendant possessed sufficient
control over the use of his or her internet account and associated computers and internet
devices such that he or she authorized, sanctioned, approved or countenanced the
infringements as particularized herein, including by engaging in the Unlawful Acts.
48. Each Defendant was provided with prior notice (the First Notice) that such Defendant’s
internet account was being used in a way that infringed the Plaintiffs copyright, and yet
such Defendant did nothing to prevent or cease the infringement. Each Defendant
therefore knew or should have known that their internet account was being used contrary
to s. 27(1) and s, 27(2) of the Copyright Act.
49. The Plaintiff further pleads that to the extent that a Defendant is the direct customer of an
ISP, and therefore is the internet account owner in respect of the internet account
12
associated with a particular IP address identified to be associated with an infringement of

a Work, they are liable for the copyright infringements particularized herein for the reasons
set out above.
NO CONSENT OF PLAINTIFF
50. All of the aforementioned acts by each Defendant has been without the authorization or
consent of the Plaintiff.
51. The Plaintiff pleads that none of the defences contained in the Copyright Act, including
those contained in sections 29, 29.1, 29.2, 29.21, 29.22, 29.23, 29.24, 29.4, 29.5, 29.6,
29.7 and 32.2 therein, or at common law, to the extent such defences exist, apply or could
apply in the circumstances set out herein. In particular, the Plaintiff pleads that each
Defendant has no possible legal or factual basis sufficient to support a defence to his or
her infringement as a result of their engaging in the Unlawful Acts.
THE SIGNIFICANT DAMAGES CAUSED BY THE INFRINGEMENT
52. The Plaintiff has suffered, and continues to suffer, significant damages from the unlawful
actions of each Defendant, including his or her illegal offering to upload of, and
infringement of the copyright in, the Work. The Plaintiff and its distributors have expended
significant resources in producing and distributing the Work which each Defendant has
blatantly and unlawfully offered to distribute, and in fact has distributed, over the internet
without providing any compensation to the Plaintiff.
53. The Plaintiff generates its revenue through the lawful distribution and sales of its motion
pictures, including the Work. The sole purpose and effect of the Unlawful Acts is to permit
consumers to receive and view the Work without payment to the Plaintiff, or any other
authorized person, or to incur any other charge. The activities of each Defendant are
carried out intentionally, with full knowledge that what he or she is doing infringes copyright
and is without the Plaintiff’s consent. As a direct, foreseeable and proximate result of the
Unlawful Acts, each Defendant has avoided costs and therefore has made unlawful profits.
Each Defendant has caused damage to the Plaintiff and has made unlawful profits at the
Plaintiff’s expense.
13
54. Unless enjoined by this Honourable Court, each Defendant will continue to engage in the
Unlawful Acts, and will continue to cause significant and irreparable damage to the
Plaintiff.
55. The Plaintiff pleads and relies upon Rules 292 - 299 of the Federal Courts Rules, as the
monetary relief sought herein will not exceed $50,000.00.
56. Such further and other grounds as this Honourable Court may permit.
57. The Plaintiff proposes that this action be tried at Toronto.
Date: March 15, 2018 AIRD & BERLIS LLP

Barristers & Solicitors
Brookfield Place
Amended: September 17, 2019
Suite 1800, Box 754
181 Bay Street
Toronto, ON M5J 2T9
Kenneth R. Clark
Patrick Copeland
Tel: 416.863.1500
Fax: 416.863.1515
Counsel for the Plaintiff

14
SCHEDULE 1 - LIST OF DEFENDANTS AND SPECIFIC INFORMATION REGARDING

INFRINGEMENTS OF SUCH DEFENDANTS
name & Address IP Address 1st Notice Date & Time 2nd Notice Date & Time
(UTC) of Infringement (UTC) of Infringement
1. Doe #1 name and address unknown 156.34.2.57 2017-09-23 12:14:22 2017-10-03 15:41:47
15
28. Doe #27 name and address unknown 69.158.120,153 2017-10-02 02:10:25 2017-10-15 18:12:41
16
17
18
(DIG) of Infringement (UTC) of Infringement
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:

Plaintiff
- and -
DOE # 1 et al.
(see Schedule 1 for list of Defendants)
Defendants
AMENDED STATEMENT OF CLAIM
AIRD & BERLIS LLP

Brookfield Place
Suite 1800, Box 754
181 Bay Street
Toronto, ON M5J 2T9
Kenneth R. Clark
Patrick Copeland
Tel: 416.863.1500
Fax: 416.863.1515
Counsel for the Plaintiff
37036667.1
FEDERAL COURT
SIMPLIFIED ACTION
BETWEEN:

Plaintiff
- and -
DOE #1 ET AL. (SEE SCHEDULE 1

FOR LIST OF DEFENDANTS)
Defendants
- and -
SAMUELSON-GLUSHKO
CANADIAN INTERNET POLICY &
Intervener
VOLTAGE’S REPLY MEMORANDUM

OF FACT AND LAW
AIRD & BERLIS LLP

Brookfield Place,181 Bay Street
Suite 1800, Box 754
Toronto, ON M5J 2T9

Lawrence Veregin (lveregin@airdberlis.com)
Tel: 416-863-1500
Fax: 416-863-1515
Solicitors for the Respondents
(Appellants by Cross-Appeal)
46547406.5

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ID 296

Court File No. T-513-18

DOE #1 ET AL. (SEE SCHEDULE 1 FOR LIST OF DEFENDANTS)

SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &

VOLTAGE’S REPLY MEMORANDUM OF FACT AND LAW

AIRD & BERLIS LLP

Kenneth R. Clark (kclark@airdberlis.com)

Solicitors the Respondents

AND TO: SAMUELSON GLUSHKO CANADIAN INTERNET POLICY AND

David Fewer (dfewer@uottawa.ca)

Tel: 613-562-5800 x2558

Solicitors for the Intervener

VOLTAGE HOLDINGS, LLC

DOE #1 ET AL. (SEE SCHEDULE 1 FOR LIST OF DEFENDANTS)

SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &

Part I — Overview ..................................................................................................... 1

VOLTAGE HOLDINGS, LLC

DOE #1 ET AL. (SEE SCHEDULE 1 FOR LIST OF DEFENDANTS)

SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &

VOLTAGE’S REPLY MEMORANDUM OF FACT AND LAW

1. CIPPIC’s submissions1 do not properly balance the rights of copyright owners

[24] [T]he notice and notice regime’s “primary goal is to deter

Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38

3. This motion is the equivalent of a summary judgment motion — Voltage has to

5. Even if discovery were available, CIPPIC’s arguments would require Voltage to

2 i.e., the Plaintiff, Voltage Holdings, LLC

vindicate their rights as quickly, easily and efficiently as possible while

Rogers v. Voltage, at para. 46, BOA, Tab 8.

A. CIPPIC’s position that “someone else did it” is pure speculation -

CIPPIC Factum at para. 11.

i. CIPPIC asserts more evidence needed - Defendants have declined

See e.g. Trimble Solutions Corporation v. Quantum Dynamics Inc. 2021 FC

CIPPIC Factum at para. 53.

10. As this Court held:

CIPPIC Factum at paras. 43–45.

Halsbury’s Laws of Canada (online), Civil Procedure, “Nature of the

In civil proceedings, the persuasive (legal) burden of proof operates in a

Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed

ii. Discovery of documents is reliable but would require production

CIPPIC Factum at paras. 16 and 20.

In this case, the plaintiffs alluded to the efficiency of including in this

Motorola at para. 1, CIPPIC’s BOA, Tab 24.

CIPPIC Factum at para. 27.

TekSavvy at para. 85, CIPPIC’s BOA, Tab 35.

See e.g. TekSavvy where highly sophisticated entities sought to identify

iii. CIPPIC suggests that Voltage should be required to perform

CIPPIC Factum at paras. 20, 52–54.

iv. CIPPIC suggests Voltage should conduct third party discovery

CIPPIC Factum at para. 36.

v. CIPPIC speculates that the subscribers would be able to identify

CIPPIC Factum para. 27.

B. CIPPIC submits the Defendants have not received notice of the

When a visa officer sends an email to an applicant who has provided an

Zare v. Canada (Minister of Citizenship & Immigration), 2010 FC 1024 at

C. CIPPIC argues the Defendants have not been properly identified

CIPPIC Factum at para. 49. Amended Statement of Claim at paras. 5–6,

D. CIPPIC relies on facts not proven in evidence to support its case

CIPPIC’s Allegation in WR Rebuttal

the Defendants’ circumstances of “The Forensic Software detects

CIPPIC’s Allegation in WR Rebuttal

in the same manner described above for

E. Voltage’s claim for infringement by authorization is sound

i. Authorization by indifference – wilful blindness – is available

32. Infringement by authorization is available in this case, in particular given the